77 N.Y.S. 541 | N.Y. App. Div. | 1902
Lead Opinion
The defendant moved, upon the papers upon which an attachment-was granted, to . vacate the same. Intermediate the’ making of the motion and its hearing the plaintiff obtained an order to show
We are of the opinion that the court had power, under section 723 of the Code of Civil Procedure, to grant the amendment. In Sulzbacher v. Cawthra (14 Misc. Rep. 545; affd. on opinion below, 148 N. Y. 755) it was held that the general power to amend allowed by the Code applies to attachment proceedings, and in King v. King (68 App. Div. 189) that the omission of a warrant of attachment to state the ground upon which it was issued was one which could be cured by amendment.
The venue is only prima facie evidence of the place where an affidavit is sworn to. (Thurman v. Cameron, 24 Wend. 87.) Here, the affidavit, while it' does not contain a venue, purports to have been sworn to before a notary public of Kings county, whose certificate of authority to administer an oath was filed in the county of Hew York. The omission of the venue, however, at most made, the affidavit prima facie a nullity, but the affidavit was, in fact, sworn to within the jurisdiction—as appears from the affidavit used to procure the amendment — of the notary who administered the oath, and, therefore, the omission of the venue did not invalidate the oath, nor did it render the affidavit a nullity when it appeared that the oath was duly administered. (Parker v. Baker, 8 Paige, 428; Barnard v. Darling, 1 Barb. Ch. 218; Lawton v Kiel, 51 Barb. 30; Smith v. Collier, 3 N. Y. St. Repr. 172; People ex rel. Mosher v. Stowell, 9 Abb. N. C. 456; Fawcett v. Vary, 59 N. Y. 597.)
In Lawton v. Kiel (supra) it was held that the omission from an affidavit on an attachment, sworn to before a commissioner without the State, of the certificate of the Secretary of State, was not fatal, "but might be supplied by amendment. In Babcock v. Kuntzsch (85
Under the section of the Code referred to and the authorities cited, we are of the opinion that the court had the power to grant the amendment and, under the facts presented, that such power was properly exercised. The attachment is also attacked upon other grounds,'but they do not seem to be of sufficient importance to be here considered.
The order is right and should be affirmed, with ten dollars costs and disbursements.
Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.
Dissenting Opinion
(dissenting):
I dissent. The attachment was also amended in a material point.
Order affirmed, with ten dollars costs and disbursements.